Saturday, April 29, 2006
Caricature goes for RM50,001
Sunday, April 2, 2006
The judiciary and a study in independence
A STORY is told about a newly inducted judge before whom a multi-billion-peso case was pending.
One day, a lawyer who was involved in the litigation visited the judge at his residence. Surprised, the judge asked, “What brings you here? Don't you know it is unethical to discuss pending cases outside the courtroom?”
“Your honour, I did not come to influence you. But if you will look outside your window and into your driveway, you will notice a brand-new Mercedes Benz which I have brought here,” the lawyer coolly said.
“That's even worse; you have come to bribe me!” the judge angrily blurted.
“Oh no, your honour, I am not giving you the car. I am selling it to you.”
“For how much?” asked the pacified jurist.
“One thousand pesos, your honour,” was the firm reply.
“In that case,” the judge calmly retorted, “I am buying two!”
This apocryphal story was told in jest by Filipino Supreme Court Justice Artemio Panganiban (now Chief Justice of the Philippines) in 1999 during a closing ceremony of a workshop for first-level judges.
Justice Panganiban went on to say: “My dear judges, ladies and gentlemen, that may have been told in jest. But it demonstrates the witchcraft and the indecent proposals with which members of the bench are tempted from time to time.
“Indeed, judges are subjected to all sorts of temptations and pressures - some brazen, some subtle, some direct, some indirect.
“Litigants and their lawyers are sometimes devious. They study the judge's profile, personality, family history and employment record in a spirited effort to find a weak point.
“Some resort to blackmail, some to political pressure, still others to friendship or kinship or even religious relationships.
“Many times lawyers are retained by litigants not because of their skill and brilliance in legal advocacy, but because of their judicial connections, fancied or real. “The ultimate question some litigants ask their counsel is not ‘Is my case meritorious?’ but ‘Do you know the judge?’”
Do such things happen here too? Let me avoid liability by not answering it but leave it to the individual reader – be you a judge, prosecutor, lawyer, litigant or a member of the public.
If, however, the answer to my question is in the affirmative, then indeed something is very wrong with the state of affairs of our judiciary which is supposed to be the fountain of justice and bulwark of our liberties.
Given then that Malaysian judges will also have to overcome such temptations and pressures, one often asks how and who do we appoint to that seat of justice?
As judges generally enjoy judicial immunity and removing any errant judges is a cumbersome exercise, it is at the appointment stage that is pivotal to ensure that only those who truly deserve this high office are appointed.
The reason, as one of America’s finest trial lawyers, Gerry Spence, put it so trenchantly:
“Who are these judges who wield such power over us, a power reserved for God? Who are these mere humans with the power to wrest children from their mothers and to condemn men to death or cage them like beasts in penitentiaries? Who possesses the power to strip us of our professions, our possessions, our very lives?
“They make law. They may take away your wife or your good name or your freedom or your fortune or your life. They are omnipotent. And the question is: To whom have we so carelessly granted that power? Are they the kind who would understand you, who from their experiences would know something of the fears and struggles you have faced? Will they care about you or about justice?”
Currently, judges are appointed by the King, on the advice of the Prime Minister after consulting the Conference of Rulers, and the Chief Justice if the appointment is to the Federal Court; the President of the Court of Appeal if the appointment is to the Court of Appeal, and the respective Chief Judges if the appointment is to the High Court.
The only appointment criteria to such high judicial office are contained in Article 123 of the Federal Constitution, which provides that the appointee must be a Malaysian citizen and for the 10 years preceding his appointment has been an advocate or a member of the judicial and legal service.
But these criteria are hardly adequate compared to those set by other Commonwealth jurisdictions because a judge holds his judicial office quamdiu se bene gesserit (during good behaviour).
Britain, for example, will have an independent Judicial Appointments Commission tomorrow under the Constitutional Reform Act 2005, doing away with the centuries-old practice of letting the Lord Chancellor make or recommend judicial appointments to the Queen.
In fact, the Bar Council has been advocating such a Commission for some time. While as a check and balance, the executive should continue to have a say on the appointment and promotion of judges, there also should be an independent body to make recommendations to the executive, otherwise judges will be deferential to the heads of the judiciary and, if appointed, will be beholden to their heads.
This may later give rise to accusations of judicial cronyism and sycophancy.
A fortiori it is also against the national interest if a powerful Chief Justice can get his friends appointed to the Federal Court who can then actually “legislate” from the bench. Therefore, the ability to stand up against any interference with judicial independence both from within and without should be the sine qua non to a judgeship.
In fact, I agree with Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim that judicial appointments must be based on merit, except that seniority should ordinarily be the prime consideration and if it is not so, it must be in exceptional circumstances.
As experience often comes with seniority, the Chief Justice was lauded for suggesting that only judicial officers who have at least five to seven years’ experience be allowed to sit as magistrates.
It is axiomatic that if many juniors are elevated, then that is as good as saying that senior judicial or legal officers lacked any merit when they were appointed!
To my mind, for juniors to leap-frog over their seniors, they must be exceptionally brilliant and capable judicial and legal officers. For example, do we check the number of judgments they have written and out of these, how many have been affirmed by the higher courts?
It follows that a body of persons such as the commission would be more capable of objectively assessing the suitability of judicial appointees.
We owe it to our nation and the next generation to ensure that only the best among the best are elevated. One may then ask what the attributes of a good judge are?
Justice Panganiban said the qualities of a good judge are encapsulated by four “Ins” - integrity, independence, industry and intelligence.
He also declared on the website of the Supreme Court of the Philippines to lead a judiciary characterised by the four ins and “one that is morally courageous to resist influence, interference, indifference and insolence” which is impervious to the plague of “ships” - kinship, relationship, friendship and fellowship.”
Has our country ever produced such a good judge? Of course, we have had many good judges who had borne true faith and allegiance to Malaysia, and who had lived up to their oaths of office in preserving, protecting and defending our Constitution.
Leading this group of legendary judges is none other than the former Lord President from 1974-1982, the late Tun Mohamed Suffian Hashim.
Many tributes and accolades have already been paid to Tun Suffian, who was undoubtedly Malaysia’s greatest judicial figure, and I say he passed Justice Panganiban’s four ins test with flying colours.
I recall these words written in my autograph book by my primary school headmaster:
“A good thing has its number of days and a good name will last forever.”
How relevant indeed, as a judge should always be mindful of the kind of name he will leave behind when he steps down. Suffian has left behind an unblemished name. Though small in build, he was a fine example of a towering Malay and, most of all, a towering Malaysian.
On April 28, the Tun Suffian Foundation will hold its inaugural fund-raising dinner to raise funds for establishing a Tun Suffian Chair on Constitutional Law, Tun Suffian Scholarship and Tun Suffian Research Centre at Universiti Malaya.
Malaysians, especially those who were associated with Suffian, must donate generously to the foundation. More information can be obtained from http://www.malaysianbar.org.my/content/view/2523/2.
It is no secret that the Bar is known for ostracising judges who have gone astray, but the Bar is also always the first to defend and honour judges who have stayed steadfast to their oaths of office as the guardians of our Constitution.
Suffian was one such judge. May he inspire many more in the years to come.